Ozer and Minister for Immigration and Border Protection (Migration)

Ozer and Minister for Immigration and Border Protection (Migration) [2017] AATA 956 (26 June 2017)
Division:GENERAL DIVISION
File Number: 2017/2026
Re:Hakan Ozer
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Miss E A Shanahan, Member

Date:26 June 2017
Place:Melbourne

The Tribunal sets aside the decision under review and substitutes a decision revoking the cancellation of Mr Ozer’s Class BC Subclass 100 Partner (Permanent) visa.
..........................[sgd]..............................................
Miss E A Shanahan, Member
MIGRATION – non-revocation of mandatory visa cancellation – criminal convictions with 12 months imprisonment – guilty plea entered – workplace injury preceding offences – loss of sight in left eye – exemplary work history – detained under Mental Health Act in psychiatric unit on the reporting of mother-in-law – married to an Australian citizen since 2007 – two children one of whom is a step-child – decision set aside and substituted with decision to revoke mandatory cancellation.
Legislation
Freedom of Information Act 1982 (Vic); s 35(1)
Mental Health Act 2014 (Vic)
Migration Act 1958 (Cth); ss 499, 501, 501CA
Cases
Minister for Immigration and Multicultural Affairs v Serevi [2000] FCA 1691
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Re Serevi and Minister for Immigration and Multicultural Affairs [1999] AATA 884
Re YYMT and FRFJ (2010) 115 ALD 590
Secondary Materials
Ministerial Declaration No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Scott Morrison MP, Minister for Immigration and Border Protection)
REASONS FOR DECISION
Miss E A Shanahan, Member
26 June 2017

On 2 June 2016, a delegate of the Minister for Immigration and Border Protection cancelled Mr Hakan Ozer’s Class BC Subclass 100 Partner (Permanent) visa under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act). Under ss 501CA(3)-(4) of the Migration Act, Mr Ozer made representations to the Minister that the decision to cancel his visa should be revoked. On 3 April 2017, a delegate of the Minister decided to not revoke the visa cancellation. Mr Ozer then lodged an application for review of that decision with the Administrative Appeals Tribunal (AAT). His application to the AAT was lodged by letter dated 9 April 2017. Mr Ozer was being held in detention at North West Point Immigration Detention Centre (NWPIDC) on Christmas Island. He had been detained at Christmas Island since 20 October 2016 except for a four week period in February and March 2017, where he was required in Melbourne for a court hearing and from around 15 June 2017 onwards, where he was transferred to Maribyrnong Immigration Detention Centre (MIDC) to facilitate his attendance at the hearing of this application in Melbourne.
At the hearing before this Tribunal on 15 June 2017, Mr Ozer was self-represented. The Minister for Immigration and Border Protection (the Minister) was represented by Mr Cunynghame, a solicitor with Sparke Helmore Lawyers. Mr Ozer gave evidence with the assistance of a skilled Turkish interpreter, Mr Karakas.
The Minister lodged their G-documents and Mr Ozer lodged a statement equating to a combined Statement of Facts and Contentions and witness statement, seven character references and the clinical medical records of International Health and Medical Services (IHMS), this company providing medical services to the NWPIDC. A full list of the tendered documents is appended to this decision.
BACKGROUND TO THE APPLICATION
Mr Ozer was born in Kastamonu in northern Turkey close to the Black Sea on 3 July 1980. He has one sibling, a sister born in 1976. He had an excellent family history and upbringing and followed in his father’s footsteps training as a motor mechanic. He commenced an apprenticeship at the age of 14 attending a technical school where he learnt the trade in diesel mechanics for two years and other mechanics, including petrol engines, for a further two years. In 1999 he enrolled in the Ankara University to study physical education but dropped out after two years. This would appear to correlate with the death of both his mother and father from cardiac disease in the early 2000s.
Mr Ozer came to Australia on 12 March 2005 in order to effect an arranged marriage. He had been issued a Spouse (sub-class 309) visa. It is said that this marriage lasted some 20 days. The exact details of this marriage have not been provided. According to Mr Ozer’s evidence he obtained employment as a motor mechanic with BMW on his second day in Australia. He worked in Melbourne for two years and was then offered a more senior position with BMW in Queensland where he was to teach other mechanics the skills he acquired in Turkey.
He had met Ms Deniz Guvenis in 2005. Shortly after his transfer to Queensland Deniz and her then two month old daughter Aleyna (known as Aleyna Ozer) joined him in Queensland. In accordance with his religious beliefs and upbringing and after living in a de-facto relationship for some months, they married in 2007. There were two ceremonies, a traditional Muslim ceremony and a civil ceremony, the latter resulting in their marriage being registered in Australia. Neither Mr Ozer nor his wife Deniz have made any effort to file for divorce. A son, Taylan, was born in 2007.
The family then returned to live in Melbourne, Mr Ozer having been offered a senior position as a mechanic with Mercedes Benz.
Mr Ozer was required to return to Turkey for a period of seven or eight months in either 2008 or 2009 as he was still in Australia on his original spousal visa. With the assistance of his wife Deniz and her parents he made a successful application to change his visa status and was issued with a Class BC Subclass 100 Partner (Permanent) visa.
Mr Ozer had been keen to buy a house for his wife and the children but apparently did not qualify for a bank loan. His parents-in-law, Emma and Ercan Guvenis suggested and arranged that the loan to purchase a property in Craigieburn be applied for in their name and that Mr Ozer pay the sum of $1,120.00 per calendar month, equating roughly to $250.00 a week, to his parents-in-law who would then pay the monthly mortgage charges. It was Mr Ozer’s understanding that when the mortgage was completed the property would be transferred to his name. This transfer did not eventuate.
Whilst working for Mercedes Benz, Mr Ozer sought an increase in salary. This was refused and he then started looking for alternative employment. From late 2013 onwards he was employed by Amal Mechanical Auto (Amal).
On 2 February 2014, while working for Amal, Mr Ozer was involved in a welding accident. He suffered flash burns to his face and eyes and burns also resulted from steel fragments lodging in the skin and damaging his eyes. As a result he has lost the sight in his left eye and his right eye is said to have 80 per cent of normal visual acuity. Between February and September 2014, he believes he had at least five and probably seven operations on his eyes. These were performed at the Victorian Eye and Ear Hospital. As he could not work he received WorkCover payments and was essentially confined to home. He became very bored and while he does not readily admit to being so, his general practitioner made a diagnosis of depression in early August 2014. Anti-depressants were prescribed but Mr Ozer says he did not take them.
His wife Deniz obtained work with Qantas airlines at Tullamarine cleaning aircraft. She worked an evening/nightshift. Mr Ozer minded the children. He perceived a change in his wife’s attitude in about early August 2014 and suspected that she was having an affair with another man because of the irregular hours, up to 12 hours, that she was absent from home.
On 26 August 2014, Mr Ozer’s mother-in-law Emma Guvenis telephoned the North West Mental Health Services (NWMHS) reporting Mr Ozer’s behaviour as being agitated and that he had accused his wife of having affairs. This was interpreted by Mr Luke Rose, mental health triage nurse as indicating paranoia. Mrs Guvenis had recently returned from an overseas trip. While overseas she said she had received phone calls from both her daughter and son-in-law, those from the son-in-law stating that Deniz was having an affair behind his back. Mrs Guvenis provided the information that Mr Ozer was not allowing his wife to go to work, was following and monitoring her when she went to the toilet and showered and had been inspecting her clothes for clues suggestive of infidelity. Mrs Guvenis said that Mr Ozer and Deniz had separated in July 2014 and had been on and off since then. It was also reported that Mr Ozer was hearing noises, believed his belongings were being shifted and that he thought people were entering his home without permission and looking for his wife.
Mrs Guvenis said her telephone call had been precipitated by Mr Ozer having punched his wife in the mouth the day before, he having accused his wife of telephoning a man with whom she was having an affair. According to Mrs Guvenis, police were called but were not pursuing an Intervention Order (IVO) and she suspected her daughter had declined to take further action. It was alleged that Mr Ozer was a drug user, in particular cannabis and probably ice. According to Mrs Guvenis, Mr Ozer had overdosed on tablets one week before after an argument with his wife. Mr Luke Rose certified this report as a CAT Category C response requiring police attendance with a Turkish interpreter. CAT is a Crisis Assessment and Treatment referring to mobile teams who attend in response to urgent mental health conditions.
The NWMHS clinical file records that attempts to make contact with Mr Ozer failed and it was not until 28 August 2014 that he was formally assessed. At this assessment, Mr Ozer said that he had been following his wife and that she had moved out of the family home four days previously. He reported feeling depressed with poor sleep and reduced appetite. He provided details of his work injuries. The interviewer was under the impression there was an IVO in force and obtained an entirely different history in relation to any illicit drug abuse to that provided by Mrs Guvenis.
On 30 August 2014, Mr Ozer was seen by a psychiatric registrar. The same history was obtained except that it was again recorded that Mr Ozer used ice and smoked cannabis on a regular basis. The registrar informed him that he was subject to an IVO which was news to Mr Ozer. It was concluded that he exhibited delusions of reference, persecution and infidelity and a diagnosis was made of a psychosis, ? substance induced, ? schizophrenia.
Mr Ozer was seen by a consultant psychiatrist (Dr Muirhead) for the first time on 1 September 2014. Thereafter, over a period of four months, he was seen by three different psychiatrists, Dr Das on three occasions and the other two on one occasion each. In the main he was seen and treated by a registrar, interns, psychiatric nurses and social workers. Dr Muirhead relied on the already recorded history as no interpreter was available. Mr Ozer did, however, deny that he was using any illegal drugs and confirmed that he was taking the anti-psychotic medication Aripiprazole as prescribed two days earlier. He had noted improvement in his symptoms. While mental examination did not reveal any perceptual disorder, Dr Muirhead confirmed the diagnosis of a Delusional Disorder, possibly schizophrenia, with secondary depressive symptoms. Daily contact with the mental health worker was to continue and thereafter home visits by non-medical staff were made almost daily.
A medical review/assessment was undertaken by the psychiatric registrar on 11 September 2014. On this occasion Mr Ozer reiterated his doubts regarding his wife’s fidelity and admitted to checking her clothing and her telephone calls, having noted what he called different kind of perfume emanating from her. He said he had an 80 per cent belief that his thoughts in this regard were true and a doubt level of 20 per cent. As a result of this additional history, Dr Narayan concluded that Mr Ozer misinterpreted innocuous clues, exhibited delusional behaviour and suffered from olfactory hallucinations. When Dr Narayan contacted Deniz Ozer, she denied any physical aggression on the part of her husband and expressed the opinion that he was improving with treatment. Despite this Dr Narayan consulted Dr Das, psychiatrist, and arrangements were made for Mr Ozer’s admission to hospital under a Mental Health Act 2014 (Vic) Order for inpatient temporary treatment. This order was made on 14 September 2014. Mr Ozer had been brought to the Northern Hospital at 18.15 hours on 13 September 2014. On that day Deniz Ozer completed a Statutory Declaration denying that she had ever taken out an IVO against her husband, declared he had never either verbally or physically abused her, that he took all his medications as prescribed and that in her belief he was not a risk to himself or anyone else.
Progress notes from 13 – 17 September are contained in the records and reveal that his wife Deniz visited regularly and frequently demanded that he be discharged home. The children visited occasionally. Mr Ozer’s dose of anti-psychotic medication was tripled and he spent most of his time sleeping in his room. The intern, Dr Tharmarajih, clarified that Mr Ozer’s so called illicit drug usage amounted to an occasional smoking of cannabis to help with sleep. However, the earlier references to substance abuse continued to be re-recorded. Mr Ozer was discharged home on 17 September 2014 at which time he was said to be alert and orientated. Arrangements had been made for a community team to supervise his taking of medication and appointments were made for review with Dr Narayan.
These home visits continued through September and October 2014 with Mr Ozer remaining stable and gradually improving and developing greater insight into his condition. The NWMHS file records that the Ozer’s separated in late October 2014 with Deniz and the children shifting to her mother’s home. On review on 31 October 2014, Dr Narayan considered that Mr Ozer was not a risk to himself or others. It was recorded that his wife had control of all his money. Mr Ozer informed Dr Narayan that the separation decision had been made by his wife and her family and that while he accepted it, he hoped that she would reconsider her decision. Dr Das saw Mr Ozer on 21 November 2014 and recorded Mr Ozer’s sense of despair and hopelessness. It was recommended that medication be continued for a period of six months.
On 5 December 2014, Mrs Guvenis contacted Mr Ozer’s case worker reporting that he was stalking Deniz, telephoning her at least 15 times a day and had broken into her house, searched the cupboards and taken away Deniz’s phone. Mrs Guvenis believed Mr Ozer was again paranoid and using ice. She had told him to vacate the house, presumably the Craigieburn home, as she wanted to sell the property or let it at a greater rent than what he was paying. The case worker advised Mrs Guvenis to contact the police if the IVO was breached. The latter had been issued in November 2014 and prohibited violence but not entry into the home or contact with Deniz.
The Broadmeadows Mental Health Service that had been providing the home visits to Mr Ozer were advised on 21 December 2014 that Mr Ozer had broken into the house Deniz was then living in, made threats with a knife and assaulted Mr Zafer Mourat. They advised that Mr Ozer had been arrested and charged with aggravated burglary, threats to kill and assault.
Mr Ozer next presented to the NWMHS on 16 February 2016, having recently been released from prison on bail. He advised that he was separated from his wife, was living alone in a rooming house and was receiving Newstart payments. He requested assistance in obtaining a disability support pension (DSP), a prescription for Valium and a nice place to live. He was informed that the North West Mental Health Assessment Unit could not provide any assistance. The Unit considered him to be in a stable mental state with no intentions to harm his wife or Zafer Mourat, with whom she now lived. It was noted that Mr Ozer was compliant with the parole requirement to report daily to Broadmeadows police and observe a curfew. Phone calls were made to Mr Ozer’s ex-father-in-law despite there being no divorce and also to Deniz, described as ex-wife, but neither were willing to respond. Eventually contact was made with Mrs Guvenis who said that Deniz was currently in the process of moving in to live with Zafer in Thomastown and that there had been no contact with Mr Ozer for many months.
In 2015, several requests were made under the Freedom of Information Act 1982 (Vic) (FOI Act) for the provision of the NWMHS medical records relating to Mr Ozer. These were made by Victoria Legal Aid (VLA), Mr Ozer’s workers compensation solicitors and later IHMS. On 29 April 2015, Dr Das, psychiatrist determined, in his role as a person authorised to determine FOI applications, that all contents of the records identifying information from a third party reporting and provision of information relating to personal affairs and circumstances was to be exempt. The rationale for this decision was that disclosure would reasonably impact on the ability of NWMHS in securing similar information in future cases. In accordance with s 35(1) of the FOI Act, disclosure was refused. Based on this entry in the NWMHS records, the Tribunal assumes that only limited access to these records has been provided in the past and that the record of information supplied by Mrs Guvenis and perhaps of Deniz Ozer was not contained in the documentation released to VLA and thus presented to the County Court.
Mr Ozer was arrested on 21 December 2014 and held in the Melbourne Remand Centre. During this period he spent 48 days in solitary confinement as a result of a riot that occurred at the Melbourne Remand Centre in 2015. There was no evidence before the Tribunal indicating that Mr Ozer was involved in that riot. He was bailed on 21 August 2015 and thereafter lived in a rented room in a shared house in Dallas.
On 7 and 8 March 2016, Mr Ozer’s charges were heard in the County Court of Victoria. Mr Ozer pleaded guilty to the charges of aggravated burglary, recklessly causing injury and threatening to kill. He was also charged with and pleaded guilty to, a charge of contravening an Intervention Order that had apparently come into force in mid-November 2014. As Mr Ozer had entered a guilty plea, His Honour Judge Tinney, in handing down his sentence on 8 March 2016, found there was no need to describe the full factual settings in his reasons and briefly outlined the events commencing mid-2014. His Honour was under the impression that Mr Ozer and his wife had separated in mid-2014 and found that Mr Ozer’s suspicions that his wife was in an intimate relationship with a close family friend were without any foundation. He noted that Mr Ozer continued to cling to these suspicions. The Intervention Order referred to was made in favour of Mr Ozer’s wife and children and did not prevent attendance at the home but prohibited family violence.
There had been a statement of agreed facts presented to the judge by the barristers representing the parties. Mr Ozer has since given evidence before the Tribunal that he was totally unaware of this statement of agreed facts and in fact does not seem to understand what such an agreement entails. His Honour had been provided with impact statements from Deniz Ozer and Zafer Mourat. The evidence before His Honour as summarised was that, on the morning of 21 December 2014, Mr Ozer had attended the premises of a house his wife was renting and to which she had recently moved. He had screamed out threats, kicked and dislodged a flywire door, had reached through a window into the room where Mr Mourat was, slashed a curtain with a knife and thereby entered the house. He then scuffled with and punched Zafer Mourat in the face. Mr Ozer was said to have used foul language, threatened to kill and had done so in front of his own son. When arrested by the police a short time later, he was pacing up and down the street crying and screaming. His Honour referred to evidence presented by a Dr Vine whose specialty is not defined or referred to but the Tribunal assumes she is either a psychiatrist or psychologist who provided evidence to the effect that Mr Ozer had what was perceived to be a delusional disorder with additional impact arising from his loss of employment due to serious eye injuries.

His Honour commended Mr Ozer for his early guilty plea which resulted in a lesser sentence than had the latter progressed to trial by jury. His Honour also paid regard to Mr Ozer’s co-operation with authorities but noted Dr Vine’s report was concerned that he still harboured the view that his wife was unfaithful. As a result, His Honour could not see the degree of remorse expected and this was held to reflect a lack of insight. His Honour acknowledged the fact that having spent 244 days in custody on remand and having been in custody at a time of major riots in the Melbourne Remand Centre resulting in lockdowns, Mr Ozer had experienced particularly harsh conditions while in custody.
As Mr Ozer was not then currently seeing a psychiatrist or psychologist or taking medication, His Honour expressed his concern that Mr Ozer was not pursuing the obvious need for treatment.
Regardless of these statements, he concluded that if Mr Ozer did engage in treatment he would have reasonably good prospects of rehabilitation. His Honour expressed both his surprise and concern that Mr Ozer’s treating general practitioner had not referred him for further mental health treatment.
Judge Tinney, in accordance with the findings of the Court of Appeal of the Victorian Supreme Court (VSCA) in the matter referred to as Verdins v R, determined that the offences committed by Mr Ozer were of a serious nature and accepted that Mr Ozer had attended the premises armed with a knife intending to assault persons while in a heightened emotional state. His Honour addressed the need for deterrence and also Mr Ozer’s perceived lack of insight into his mental health issues. However, he did not attach much weight to the requirement for protection of the broader community but stated that women must be safe to leave relationships as they choose. His Honour assessed Mr Ozer as being a medium risk of reoffending while considering his suitability for a Community Corrections Order (CCO) but decided, in light of recent VSCA decisions in Hutchinson, Scammel, McGrath and many others, to impose an immediate term of imprisonment and to blend that order with a Community Corrections Order.
His Honour ordered the taking of a forensic sample, namely a buccal scraping sample, presumably for DNA testing as had been requested by the prosecution. He also approved an application for disposal of the knife said to have been used in the offences. Having dealt with the minor aspects of the sentencing, Judge Tinney convicted and sentenced Mr Ozer to an aggregate term of 12 months imprisonment. As he had already served eight months (244 days), he was to serve the balance in custody and a two year CCO was to take effect immediately upon his release from prison. Under the CCO, Mr Ozer was to attend the Broadmeadows Community Correction Services within two clear days of his release from prison.
The CCO was to include testing for drug abuse or dependency as directed by the Regional Manager. In addition any mental health assessment and treatment that might be considered required was to be directed by the Regional Manager.
His Honour indicated that had Mr Ozer not pleaded guilty he would have imposed a sentence of five years imprisonment with a non-parole period of three and half years.
Mr Ozer served a further four months imprisonment at Loddon Prison in Castlemaine and was then released into the community, with the CCO in effect. He met all requirements of daily reporting to the Broadmeadows Police and did not incur any further infractions of the law.
On 22 November 2016, Deniz Ozer lodged a complaint that between August and September 2014, Hakan Ozer had digitally raped her. As a result of the subsequent charge, Mr Ozer was required to attend the Magistrates Court in Melbourne on 24 February 2017. The hearing of the matter was adjourned to a later date and as no finding has been made, will not be considered further by this Tribunal except to state that it is Mr Ozer’s intention to defend the charge. No explanation in the delay in lodging the complaint, which now amounts to two and half years, has been provided.
EVIDENCE BEFORE THE TRIBUNAL
Mr Ozer was the only person to give evidence before the Tribunal, his presence in Melbourne having been facilitated by the respondent after the Tribunal declined to grant a request by the respondent for the applicant to attend his hearing via video-conferencing technology from NWPIDC. Mr Ozer’s personal attendance at the hearing of his application was deemed to be critical in order to assess his credibility and ensure that the hearing was conducted in a procedurally fair manner.
Mr Ozer gave his evidence on oath on the Koran. He accepted that he had committed the crimes he was convicted of and that his actions were a huge mistake. He described his crimes as the first and only time he has behaved in such a manner and that he very much regrets doing so. The attack of 21 December 2014, he said, was a spur of the moment response, precipitated by his severe level of anger which was contrary to his normal behaviour. He believed he should be given a second chance. He wanted to provide for his children, see them on a regular basis and live a good life. He denied that he had ever brandished a knife on 21 December 2014 but had arrived at the house bearing a silver fountain pen as his estranged wife Deniz had rung him the day before asking him to sign forms required for the children to accompany her overseas on a trip.
He said that when he arrived at the house in Thomastown, he had first knocked on the door and after attracting his son’s attention through the window next to the door, his son had opened the door. He stated that Zafer Mourat had endeavoured to leave the house via the lounge room window and had torn the curtain and broken the window in his efforts.
In relation to statements filed or attributed to his father-in-law and aunt Sabiha arising from the incident of 21 December 2014, Mr Ozer informed the Tribunal that both had subsequently and before the County Court trial withdrawn their statements. Aunt Sabiha had contacted him and apologised for having provided her statement in the first instance. He confirmed that he was unaware that, at the Country Court hearing of 2016, a statement of agreed facts had been filed.
In relation to the events of 2014 and his attendance at the NWMHS, Mr Ozer said that he had been unaware that his mother-in-law had contacted the service in August until he received the Tribunal’s summary of the NWMHS records and the records in full.
He agreed that he was depressed to a degree after his eye injury but thought that the major symptoms related to boredom, as he spent most of his days at home and evenings minding the children.
Mr Ozer explained his reason to plead guilty as having given up all hope after spending 48 days in solitary confinement at the Melbourne Remand Centre. Furthermore, he stated that he had been advised by his barrister to plead guilty as this would likely attract a more lenient sentence of nine months. On questioning from myself, Mr Ozer revealed that while in prison he would sometimes take his prescribed medication but after speaking with the visiting prison psychiatrist, he had stopped taking all drugs. He had lost his workers compensation claim as he was imprisoned and could not appear at the compensation hearings. The Tribunal has no knowledge of what was involved or said in these claims.
In relation to the events of 21 December 2014, Mr Ozer confirmed that he was attending his wife’s place of residence in order to sign forms relating to the children travelling overseas. Deniz had on, the 20 December 2014, requested that he arrive before 11 a.m. As he walked past the house he saw his wife and Zafer in bed. He walked to the door and through an adjacent window and saw his son playing a computer game. His son saw him and started yelling dad, dad which alerted Zafer and Deniz who came out of the bedroom. Mr Ozer said he called for Zafer Mourat to come outside. Zafer had then tried to escape the property through a window and then the door and as Zafer tried to leave via the door he had punched him once in the face.
In response to my question whether other members of the family were present at the time, he answered that his wife’s aunt, his wife, Zafer Mourat and two family friends were in the house. He believed that the family friends and aunt entered through the back door and then his father-in-law had arrived in response to a telephone call from Deniz. Mr Ozer said he was the one who telephoned the police during the incident, asking them to attend. He had not given his name. He estimated that the Epping police took 20 minutes to arrive following his call.
Mr Ozer was of the opinion that, despite the evidence he had given to the police and others, he had been outweighed by the evidence of the others presented on a four to one ratio. He said he had not seen Zafer Mourat since that episode but later corrected this. Mr Mourat and Deniz had challenged him at an Epping shopping centre after his release from prison whilst he was still subject to the CCO. They had tried both verbally and by their actions to provoke him to respond physically but he had resisted and walked away. Mr Ozer was aware that Mr Mourat and his estranged wife continued to live together. His estranged wife had kept all his belongings, including money kept in a safe in the home. He told the Tribunal he believed that this money had been used to fund numerous overseas trips for his estranged wife, Mr Mourat and the children.
I asked what had happened to Deniz Ozer’s first husband and father of her daughter Aleyna. Mr Ozer said that Deniz had accused her first husband of family violence and beating her up, he having thought she was having an affair with Zafer Mourat. The first husband had been found guilty, having admitted to some degree of physical violence and was imprisoned. Mr Ozer said he had received information from mutual friends regarding his estranged wife’s activities. He said he had been told that she had been fired from her position with Qantas as she had failed drug testing procedures and understood that she had started her own business.
Mr Ozer confirmed that he would defend any further charges particularly those lodged in January 2017 concerning rape allegations by Deniz. These he regarded as a further effort to have him removed from Australia.
Mr Ozer readily admitted he had made a gross mistake in attacking Zafer Mourat. He expressed his remorse. He now felt well and mentally strong despite his prolonged solitary confinement and his detention on Christmas Island where many others had, to use his words, lost the plot. He no longer felt any anger toward his estranged wife and only wished to help his children, see them regularly and provide for them. He did not believe that if he was deported to Turkey his estranged wife would ever let the children visit him. Mr Ozer confirmed that he had not seen the children for well over two years.
I drew Mr Ozer’s attention to the various psychiatric reports which, between 2014 and 2016, have provided four or five different diagnoses. Mr Ozer’s diagnosis has been more recently revised with the last reports from NWMHS’ psychiatrists opining that previous diagnoses had been incorrect and as a result they both recommended cessation of anti-psychotic medication. Mr Ozer agreed and confirmed the impression given by these reports to the Tribunal that his mental status was now normal.
Mr Ozer advised that his only relative living in Turkey is his older sister, who is now in her early 40s, is single and lives in northern Turkey adjacent to the Black Sea. Both of his parents are deceased but he does have an aunt, his father’s sister, living in Roxburgh Park. The aunt is married and has eight children. He believed his aunt was willing to assist him in any way she could. He said he had already made enquiries regarding future employment with a positive response and anticipated being re-employed by Amal Mechanical if he was released into the Australian community. Additionally, Mr Ozer informed the Tribunal that in 2013 he had undertaken the Toll Logistics examinations for mechanical upkeep of their trucks and he intended, after appropriate updating in this area, to apply for work with Toll.
In relation to his eyesight, Mr Ozer said this was stable. He said that he is blind in the left eye but the sight in his right eye was described as Okay. He had been told to attend for review of his eyesight at three to six monthly intervals but has not seen an ophthalmologist since being detained on Christmas Island.
DOCUMENTARY EVIDENCE
NWMHS Records
Most of the documentary evidence has been considered under BACKGROUND TO THE APPLICATION. However, there are entries that require further consideration. In the NWMHS reports the vast majority of assessments of Mr Ozer were conducted by mental health nurses or trainee psychiatric registrars. Through a lack of interpreters during these assessments there appears to have been a perpetuation of the original symptom notification of August 2014. Throughout Mr Ozer’s period of hospitalisation at Northern Hospital, his wife denied quite vociferously that there was anything wrong with him psychologically, that they were separated, that there was any question of abuse either physical or mental and she had on numerous occasions requested that he be discharged from hospital.
On 7 October 2014, Dr Narayan, senior registrar in psychiatry had reviewed Mr Ozer with his wife Deniz. Both reported improvements in his status and their relationship. Mr Ozer reported that he felt stupid about what had transpired in the past. Deniz reported that her husband was no longer questioning her or checking her behaviour and Dr Narayan concluded there was no overt behaviour or suggestion of delusions which was corroborated by Deniz. His mood was normal, cognitive function did not reveal any obvious problems but needed to be examined separately and his judgement was intact.
Dr Das saw Mr Ozer on 21 November 2014 and recorded that Mr Ozer and Deniz had separated two weeks previously and as a result, he felt helpless and lonely with a sense of despair. On this occasion, a lengthy history was obtained, the entry being one and a half pages, in contrast to the usual 12 lines in most of the other assessments. Dr Das concluded that Mr Ozer’s mood was euthymic (i.e. normal) and he was devoid of aggressive thoughts. He was seeking help in regard to insight, his judgement was intact and as a result Dr Das considered him to be low risk and any delusional disorder was in remission. In Dr Das’ opinion, Mr Ozer did not meet the criteria for any anxiety disorder, in particular post-traumatic stress disorder (PTSD) but recommended continuation of Abilify at 30mgs per day as a prophylactic measure with review in three months and probable discharge in six months.
Victorian Police Record relating to Mr Ozer
This record was provided on summons by the respondent and outlined the various events attended by the police and the interviews conducted both with Mr Ozer, his father‑in‑law, his aunt by marriage and a third person apparently present as a serviceman in the house at the time of the offences. There are numerous statements filed by various members of the Victorian Police Force. Regrettably none of the interviews were conducted with an interpreter. It is clear from the content of the issued transcript that Mr Ozer was distressed, angry and clearly did not understand the meaning of his rights as read to him by the police officer. When asked if he wanted a solicitor, he said he already had one for his workers’ compensation claim.
The interviewing police officer talked about Mr Ozer’s ex-wife, to which Mr Ozer repeatedly stated she was not his ex-wife but his present wife. Most of the statements he made related to his belief that his wife was conducting an extra-marital affair with Zafer Mourat, that she was continuing to use drugs such as ice to excess and the effect of these on the family relationships. The police endeavoured to return his concentration to the events of that night with very limited success. Despite his distressed state, Mr Ozer’s statements to the police regarding the events was the same as already summarised i.e. that his son let him in, that he did not arrive with a knife, nor did he return to his car and collect a knife which he kept with a spare set of keys in the side door of his vehicle and that the broken window had resulted from Zafer Mourat attempting to leave the property.
The record of interview contained several notations in the margins stating should have had an interpreter!!. It is not clear who added these comments.
The records confirm that an IVO was issued on 10 November 2014 for a period of 12 months in order to ensure the emotional welfare and safety of Deniz Ozer and the children.
Mr Ercan Guvenis provided a statement to the police dated 21 December 2014. He is the father of Deniz Ozer. He stated that on 20 December he had assisted his daughter Deniz move into her new house in Thomastown. He thought about three months earlier her husband Hakan had separated from his daughter and they have been on and off since then and this was the reason she was moving.
He had been telephoned on the morning of 21 December 2014 and been told that Mr Ozer had come to the daughter’s new house. Mr Guvenis immediately got into his car and drove to the address where he found Hakan Ozer out the front of the property talking to a person known as Sayhan. Mr Ozer was described as being very angry, pointing to the house and saying: He is the one that cost me my marriage.
Mr Guvenis said he noticed that Hakan had a small silver flick-knife in his hand. The knife was closed. He asked for the knife which Hakan gave him. Mr Guvenis placed the knife in his pocket as Mr Ozer ran into the house. Mr Guvenis followed him and found Mr Ozer wrestling with Mr Mourat. They were separated after about 30 seconds. Mr Ozer and Mr Guvenis then walked out of the house into the street. When the police arrived, Mr Guvenis gave the knife to a Constable Arrowsmith.
A statement was also provided by a Mr Alkan Arsunlar. Mr Arsunlar had been repairing fixtures in the kitchen of the house when he heard a noise and shouting coming from the front. He found his friend Zafer Mourat and Mr Ozer on the ground near the front door of the house, Mr Ozer having Mr Mourat in a headlock. Mr Arsunlar endeavoured to separate them and eventually Mr Ozer let go and walked out of the house yelling. Mr Arsunlar had stayed with Mr Ozer outside the house in an effort to calm him down until the police arrived.
The Statements obtained by the police from Zaher Mourat, Deniz Ozer, Ercan Guvenis, Sabiha Seduh and Alkan Arsunlar contain major differences in the detail and description of the events of 21 December 2014 that they are said to have witnessed.
The first uniformed policeman who attended the property, Constable Alex Kaluzhnyy provided a typed statement confirming that when he arrived at the property, Mr Ozer was outside the property waving his arms and speaking loudly. He had searched Mr Ozer, having been informed of the presence of a knife. He only found a cigarette lighter, a mobile telephone and a packet of cigarettes. Mr Ozer was then transported to the Epping police station where he was said to have been read his rights. He continuously tried to provide the details of the issues surrounding his relationship with his wife and was again repeatedly cautioned and told he did not have to say anything.
IHMS Records
These have been addressed under BACKGROUND TO THE APPLICATION but it is of relevance that, on his arrival at NWPIDC on Christmas Island, Mr Ozer was assessed by a variety of health professionals, the first being a mental health nurse who has listed Mr Ozer’s diagnosis and the medications he was taking on arrival. The diagnosis that had presumably been provided on transfer was that of a Bipolar Disorder and his medications were said to be Seroquel, Mirtazapine and Risperidone, two of which are anti-psychotics prescribed usually for schizophrenia and the other an anti‑depressant.

When assessed by a psychiatrist on 27 July 2016, it was determined that the correct diagnosis was depression, with psychosis in remission. A further review by a psychiatrist on 25 November 2016, while noting the past history did not find any evidence of a thought disorder or suicidal ideation. The psychiatrist was of the opinion that the so-called voices Mr Ozer heard were pseudo-hallucinations and referential ideas from television. The likely diagnosis was considered to be a major depressive disorder in remission but the psychiatrist could not completely rule out schizophrenia. The psychiatrist requested that the staff obtain a discharge summary from the Northern Hospital and prison medical records prior to his next visit.
Mr Ozer has been seen by psychiatrists on Christmas Island on two occasions in 2017, the first of these being 6 January 2017. The health service was still awaiting the medical records from Northern Hospital and the prison. After a lengthy interview the psychiatrist concluded that Mr Ozer is depressed not psychotic. Based on this diagnosis he recommended that the risperidone (anti-psychotic) be ceased but that the Seroquel be available to him as he found this helpful in inducing sleep.
The last provided interview with a psychiatrist is that of 1 March 2017, when the psychiatrist was asked to assess Mr Ozer’s fitness to fly. On consultation and examination he described Mr Ozer as pleasant, reactive, nil psychotic symptoms. Nil suicidal / homicidal ideation. The diagnosis made was depression – stable on medication. He was regarded as fit to fly and that he should continue his current medication.
The notes do contain a copy of the authorisation to release medical records form signed by Mr Ozer in January 2017.
Character References
Mr Ozer has provided character references from seven individuals, all of whom have known him for more than five years. Many first met him through his work, they having a long term relationship with him as he serviced their motor vehicles. Many of these have become personal friends and socialised with Mr Ozer. All of them have attested to his skills as a mechanic, his decency and trustworthiness and have described him as a good man with a great love for his family. Several stated he would never be a threat to the Australian community at large.
None of the authors of these character references gave evidence at the hearing and were not cross-examined. However, the respondent did not raise any issue with the information contained within these statements and they were tendered into evidence.
RELEVANT LEGISLATION
With regard to the mandatory cancellation of visas, s 501 of the Migration Act states that:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
…
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)…
…
Section 501(7)(c) provides that a person has a substantial criminal record where:
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or ...
With regard to the revocation of mandatory cancellation, section 501CA relevantly provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)a written notice that sets out the original decision; and
(ii)particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
(5)If the Minister revokes the original decision, the original decision is taken not to have been made.
Direction No 65 of the Migration Act 1958
Under s 499(1) of the Migration Act, the Minister may make directions to a person or body having functions or powers under the Migration Act about the performance of their functions or the exercise of their powers. Under s 499(2A), decision makers, including the Tribunal, must comply with a direction made under s 499(1). Direction No 65 (the Direction) was made on 22 December 2014 and came into effect in June 2015. Paragraph 6.2(1) of the Direction states that:
The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
Paragraph 6.2(3) provides that the principles referred to above provide a framework within which decision makers should approach their task of, amongst other things, deciding whether to revoke a mandatory cancellation under s 501CA of the Migration Act. Those principles to achieve this protection are set out in paragraph 6.3(1) to 6.3(7) of the Direction:
6.3 Principles
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
In determining whether or not to revoke a mandatory cancellation, a decision-maker must take into account the considerations listed in PART C of the Direction, which refers to primary considerations and other considerations. Paragraph 13(1) provides that the primary considerations are:
...
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian community.
Each of those primary considerations is elaborated upon in paragraphs 13.1-13.3 of the Direction, the relevant extracts of which are outlined below:
13.1Protection of the Australian Community
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2)Decision-makers should also give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
13.1.1The nature and seriousness of the conduct
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including: [emphasis added]
a)The principle that, without limited the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
c)The sentence imposed by the courts for a crime or crimes;
d)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
....
13.1.2The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively: [emphasis added]
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
13.2Best interests of minor children in Australia affected by the decision
(1)Decision-makers must make a determination about whether revocation is, or is not, in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child)
…
13.3Expectations of the Australian community
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate not to revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
Paragraph 14 of the Direction provides that the other considerations include (but are not limited to):
…
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims;
e)Extent of impediments if removed.
As outlined below in the part of this decision concerning the respondent’s submissions, only strength, nature and duration of ties and extent of impediments if removed are relevant in Mr Ozer’s circumstances. Paragraphs 14.2 and 14.5 of the Direction respectively elaborate on those two concepts:
14.2Strength, nature and duration of ties
(1)The strength, nature an duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i)Less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii)More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
14.5Extent of impediments if removed
(1)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)The non-citizen’s age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.
Finally, it is important to note that paragraph 8(4) of the Direction provides that primary considerations should generally be given more weight than the other considerations. Furthermore, paragraph 8(5) provides that one or more primary considerations may outweigh other primary considerations.
SUBMISSIONS
The Applicant
Mr Ozer did not make formal submissions but relied on his statement and the evidence he had given. In his statement he had expressed his remorse stating he was deeply sorry for all the mistakes that he had made and that his goal if he were allowed to stay in Australia would be to see, care for and support his children. He would aim to rapidly gain re‑employment and believed that he would be successful in this area and would eventually be able to buy his own house so that his children could stay with him as much as possible.
In Mr Ozer’s oral evidence he outlined enquiries he had made already regarding re‑employment with his past employer Amal Mechanical and assistance friends and relatives were willing to provide.
The Respondent
Mr Cunynghame spoke to his Statement of Facts, Issues and Contentions outlining the cancellation of Mr Ozer’s visa on 2 June 2016, the subsequent application by Mr Ozer for revocation of the mandatory cancellation and the delegate of the Minister’s decision of 3 April 2017, under s 501CA(4) of the Act not to revoke the mandatory cancellation.
Mr Cunynghame outlined that as there was no dispute that Mr Ozer did not meet the requirements of the character test as delineated by s 501(6)(a) of the Migration Act (due to his substantial criminal record within the meaning of 501(7)(c)), the issue for determination by the Tribunal was whether there was any other reason why the original decision should be revoked. In determining any other reasons why revocation is attracted, the Tribunal was required to make its decision with reference to matters set out in Part C of Direction No 65.
Mr Cunynghame addressed the primary considerations, these being the protection of the Australian community (including the nature and seriousness of Mr Ozer’s conduct and the risk to the Australian community, as outlined in paragraph 13.1(2) of the Direction), the best interests of minor children and the expectations of the Australian community.
In relation to the nature and seriousness of the conduct, Mr Cunynghame reviewed the evidence regarding the offences and the findings of the delegate that on 21 December 2014, Mr Ozer had breached an IVO granted in November 2014 and forcibly entered the property his estranged wife had moved to armed with a knife. He had then punched Zafer Mourat in the face, swore at him and threatened to kill him. The delegate had made reference to the County Court Judge’s description of the incident, stating that it was violent, distressing and made worse by the fact that Mr Ozer’s son had witnessed the event.

Mr Cunynghame submitted that the aggravated burglary while armed with a knife, these events having been undertaken in the presence of his wife and son, were crimes against vulnerable members of the community within the meaning of paragraph 13.1.1(1)(b) of the Direction and were therefore serious. Mr Cunynghame submitted that Mr Ozer had clearly breached the IVO by committing family violence against his wife and son on 21 December 2014.
In relation to the risk to the Australian community, it was contended that as Mr Ozer had been convicted of a violent offence, the Australian community’s tolerance for the risk of future harm or re-offending was low. As a result the risk of re-offending was considered to be unacceptable to the Australian community. It was contended that this was supported by the fact that the Mr Ozer had previously shown disregard of the IVO. It was argued that the Country Court Judge had in his sentencing stated that Mr Ozer would have reasonably good prospects of rehabilitation provided he engaged in treatment for his mental health issues as he believed that Mr Ozer had little insight in relation to his offending and that he had been diagnosed as having delusional disorders which were longstanding and likely to recur in similar situations. He further submitted that the applicant’s oral evidence only made a stronger case for the serious risk of reoffending in the future.
Mr Cunynghame stated that Mr Ozer, in his application for revocation of the mandatory visa cancellation, had not provided information regarding mental health issues. It was contended that there was no evidence before the Tribunal that Mr Ozer had engaged in rehabilitation or mental health treatment. Therefore the likelihood of further criminal or serious conduct was a distinct possibility.
In relation to the best interests of minor children, the delegate had determined that revocation of Mr Ozer’s visa would not be in the best interest of the children. Despite this conclusion, Mr Cunynghame contended that little weight should be placed on this factor as there was no evidence before the Tribunal that the applicant had a close relationship with his children as he had not had any contact with them for nearly two and a half years. The children remained in their mother’s care. As a result the respondent submitted little weight should be ascribed to the delegate’s finding.
In addressing the expectations of the Australian community, it was noted that the principles indicated that a higher tolerance may be afforded to a non-citizen who has lived in the community for most of their life or from a very young age. While Mr Ozer has lived in Australia for 12 years, it was submitted that he came to Australia at the age of 25 and that there was little evidence that he had contributed positively to the Australian community beyond his employment. Mr Ozer’s offences and the ongoing risk of further offending were contended to support an expectation by the Australian community that he should not hold a visa.
The respondent submitted that non-refoulement obligations, the impact of any decision on Australian business interests and the impact of any decision on victims of Mr Ozer’s conduct were not relevant considerations in this matter. Based on the evidence before the Tribunal, I agree with that submission.
It was submitted that the other considerations that should be considered in this matter related to the strength, nature and duration of ties and the extent of impediments if removed.
With regard to strength, nature and duration of Mr Ozer’s ties to Australia, Mr Cunynghame noted that Mr Ozer had been in Australia for 12 years. However, he noted that Mr Ozer did not arrive as a young child and that he had not made a positive contribution to the community beyond his employment. He further submitted that there was some mitigation to the 12 years Mr Ozer had spent in Australia as he had spent the previous 25 years in Turkey.
Finally in relation to the impediments if removed, Mr Cunynghame submitted that, if returned to Turkey, Mr Ozer would not face any more difficulties in establishing himself and maintaining basic standards of living than any other citizen of Turkey It was contended that he would have access to social and healthcare services comparable to what is available to other citizens of Turkey and that as he was culturally familiar with the country this consideration should be given minimal if any weight.
In conclusion, Mr Cunynghame submitted that the decision of the delegate of the Minister to not revoke Mr Ozer’s visa cancellation should be affirmed.
TRIBUNAL’S DETERMINATIONS
The evidence before the Tribunal both oral and documentary is at times conflicting and uncorroborated by independent evidence. The Tribunal has made mention of these in recording the evidence, both documentary and oral and shall not repeat it except to say this applied to Mr Ozer’s evidence, Mrs Guvenis’ evidence, Deniz Ozer’s evidence and to a much lesser extent to the police reports.
In the case of Mr Ozer’s evidence before the Tribunal and the police documentation of the events of 21 December 2014, there are features of his evidence that have been maintained throughout the two and a half year period since the criminal offences were perpetrated. They are:
·that he went to the Thomastown house to which his wife had moved the previous day, at her request and for the purpose of signing documents permitting her to take their children overseas. His wife had nominated a time at which he should attend.
·he did not break into the house but was admitted via the front door by his son Taylan.
·the broken window and torn curtain in the living room had resulted from Mr Mourat’s efforts to escape from the house via that route.
·at no time had Mr Ozer been carrying a knife, only a silver fountain pen in order to sign the documents, that his evidence had been outweighed by that of at least four adults in the house at the time, these being his estranged wife, Mr Mourat, his wife’s aunt Sabiha and a handyman Mr Arsunlar.
·Mr Ozer had been unaware that his mother-in-law Mrs Guvenis had initiated his involvement with the NWMHS in August 2014.
Deniz Ozer’s evidence, all of which is documentary, has also been conflicting in terms of dates and in particular her recorded activities and requests to medical staff at Northern Hospital. She stated her husband’s mental state was normal, that he was not delusional and that she wanted him discharged home as soon as possible. She had supported her arguments with a Statutory Declaration declaring she had never been physically or verbally abused by Mr Ozer; that she had not taken out an intervention order at any time; that he was taking his medication as prescribed and that she did not believe that he was a risk to himself or anyone else. Her subsequent complaint to the police in November 2016 resulting in the charge of rape is in direct conflict with this Statutory Declaration.
Likewise Mrs Guvenis had in January 2016 advised the NWMHS that her daughter was currently shifting into a house in Thomastown with Zafer Mourat, when there is considerable evidence that this shift occurred in December 2014, the address being the same on both occasions.
The evidence regarding Mr Ozer’s mental health status is perplexing. There have been multiple diagnoses recorded, the first being the diagnosis by his general practitioner in early August 2014 of depression secondary to his workplace injury resulting in the loss of sight in his left eye. Based on the information provided, the NWMHS made the diagnosis of a delusional disorder and queried the possibility of schizophrenia.
The County Court accepted the diagnosis of a delusional disorder, there being no evidence before it supporting Mr Ozer’s belief that his wife was engaging in extra marital affairs. While the Tribunal has not been provided with any reports generated while Mr Ozer was serving imprisonment at Loddon Prison or prior to that whilst in the Melbourne Remand Centre, the medical data from North West Point, Christmas Island Detention Centre suggests that a diagnosis of bipolar disorder had been made during his incarceration in Loddon Prison. Initially, psychiatrists who saw Mr Ozer while he was detained on Christmas Island, accepted the diagnosis of delusional disorder and possibly schizophrenia but with the passage of time and more detailed interviews this diagnosis has been altered. Similarly, while the diagnosis of a delusional disorder was maintained for several months by the Northern Hospital psychiatric unit, on the last attendance the psychiatrist also questioned this diagnosis and its validity.
The last report from the Mental Health Services of Northern Hospital favour a diagnosis of a delusional disorder in remission. The last report from the NWPIDC, by a visiting psychiatrist, excluded the diagnosis of a psychosis and substituted a diagnosis of depression. On 1 March 2017, the psychiatrist confirmed the diagnosis of depression and stated that Mr Ozer had no psychotic symptoms, nor did he have any suicidal or homicidal ideation. He was considered to be stable on medication and in remission.
The Tribunal has noted the comments of Judge Tinney in the sentencing of Mr Ozer on 8 March 2016. His Honour did not address the evidence before the Court as Mr Ozer had pleaded guilty to all charges. The Tribunal is not privy to the agreed statement of facts provided by the barristers representing the Crown and Mr Ozer. However, the medical file from the Northern Hospital indicates that the information provided under FOI to VLA, who represented Mr Ozer, had exempted certain documentation relating to information provided by third parties. The only third parties referred to in the file are Mrs Guvenis and Mr Ozer’s wife Deniz. The FOI request was limited to the period September to December 2014. It thus appears likely that this Tribunal had more documentation available to it in relation to Mr Ozer’s mental health status than did the prosecution and the defence barrister and therefore to His Honour.
The Tribunal’s findings with regard to Mr Ozer’s mental health status should not be considered impugning the conviction or the sentence. The Tribunal notes the oft-cited decision of Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 at 244, where Branson, Lindgren and Emmett JJ stated that:
[I]t is not open to the Tribunal to engage in any inquiry which would impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence. … There are good policy reasons why such a principle should prevail. It could only undermine the criminal process for an administrative decision to be based on considerations inconsistent with the conviction or sentence imposed.
Since SRT, a number of decisions of the Federal Court and the Tribunal have considered the issue of engaging in inquiries that may impugn a sentence. In Re YYMT and FRFJ (2010) 115 ALD 590 at 631-635, Forgie DP and Fice SM provided a summary of those decisions. From them, they distilled a number of relevant principles when considering evidence that may impugn a conviction or sentence. Relevantly for Mr Ozer’s circumstances, the Tribunal noted at 635 that:
…
(2)where jurisdiction is dependent upon a person’s having been convicted of a particular offence or sentenced in a particular way:
(a)the fact that the conviction has been entered or the particular sentence imposed by a court cannot be questioned;
(b)in the case of a conviction, the tribunal may not make findings of fact that contradict those that had to be found in order to establish the elements of the offence of which the person has been convicted or the findings of fact on which the sentencing judge imposed the sentence; and
(c)in the case of a sentence, it should look upon the facts found by the sentencing judge as strong prima facie evidence of those facts but may also look behind and beyond them provided it does not go so far as to make findings of fact that, had they been made by the court, would not have supported the conviction or the particular sentence imposed…
…
As noted above, it appears that the Tribunal has more information before it concerning Mr Ozer’s mental health status than did the participants in the County Court sentencing. Making a finding different to that of the County Court in this regard would not appear to impugn the conviction nor impugn the sentence. In this regard, the Tribunal notes the analogous circumstances in the matter of Re Serevi and Minister for Immigration and Multicultural Affairs [1999] AATA 884 and the subsequent appeal to the Federal Court in Minister for Immigration and Multicultural Affairs v Serevi [2000] FCA 1691. In the Tribunal hearing, Chappell DP made conclusions (at [97]) about Mr Serevi’s behavioural patterns and aggression on the basis of psychiatric evidence that was not before the sentencing Magistrate. In doing so, Chappell DP noted that it is not very helpful to speculate about whether Mr Serevi’s sentence would have been different. On appeal to the Federal Court, Whitlam J found that the Tribunal’s views expressed in its reasons at paragraph [97] did not impugn the sentence. He further found that the reliance on psychiatric evidence to further understand Mr Serevi’s offending should be distinguished from a finding that would impugn the sentence, such as that in SRT, where the Tribunal made a different finding on the cause of death to the trial judge.
Of course, Mr Ozer’s statements that he pleaded guilty because he had given up and that he was told to plead guilty by his barrister to receive a more lenient sentence should not be considered, as to accept them would impugn the sentence of the County Court. Similarly, suggestions that Mr Ozer had been invited to the Thomastown house on the day of the incident, that he was admitted through the front door by his son, that the broken window and torn curtain were caused by Mr Mourat’s efforts to escape from the house and that Mr Ozer was carrying a fountain pen and not a knife, should not be considered for the same reason.
Mr Ozer gave his evidence before the Tribunal in a calm, controlled and logical manner. He expressed his deepest regrets for what had occurred, his acceptance of the outcome and his sole desire to re-establish his contact, care and support of the children. While Aleyna is not his biological child, she has been in his care from the age of two months until he and his wife separated in mid-November 2014.
Mr Ozer has told the Tribunal, both in the course of a telephone directions hearing and at the formal hearing of his application that he has not taken the anti-psychotic medication as prescribed. He found these medications to have a severe sedative affect and as he has repeatedly stated, he did not believe his thoughts regarding his wife’s infidelity to be delusional. Despite his failure to take the medication he has improved slowly but definitely over the past 12 months. This improvement is documented in the clinical records from North West Point Detention Centre.
The Tribunal found Mr Ozer to be a witness of truth and could not detect any evidence of lingering anger or a desire for revenge in relation to either his estranged wife or the victim of his attack Mr Mourat. It was clear from his evidence that he wished to pursue his trade as a highly skilled senior mechanic particularly in the diesel motor field and that he believed that should his visa be restored and he be allowed to remain in Australia he would obtain suitable employment without difficulty. There is of course no corroborating evidence that this is the case but given his past exemplary work history and his current attitude, it would appear likely.
The Tribunal can find no evidence to support the concept that he has anything other than a low risk of reoffending.
THE APPLICATION OF DIRECTION NO 65 TO THE EVIDENCE BEFORE THE TRIBUNAL
Protection of the Australian Community
The offences to which Mr Ozer pleaded guilty were all committed in a setting of domestic and marital discord. The Tribunal acknowledges that Mr Ozer’s crimes were serious, with some of them being violent and all committed in the presence of a child (being Mr Ozer’s son). However, the events of 21 December 2014 are the only recorded transgressions of the law of Australia for Mr Ozer. Mr Ozer’s pre-offence history was exemplary. He has a first class work history with expertise in the area of motor vehicle and truck engine maintenance and repair, an area required by the Australian community. There is no evidence before the Tribunal in the form of psychiatric analysis and assessment that suggests he is a risk to the Australian community at large.
The most recent assessments, in particular that of March 2017 by a psychiatrist at the detention centre on Christmas Island, is that he is now totally devoid of any psychological symptomatology such that any previous diagnosis, assuming they were correct, is no longer active. The Tribunal cannot ascertain any expert evidence supporting a risk of reoffending. The Tribunal acknowledges the Australian communities concerns in this regard, but the evidence before it assuages such concern.
Mr Ozer, has except for a period of five months, been serving a sentence for the offences committed on 21 December 2014 or has been detained in a migration detention centre and at both sites has not been able to undergo what is normally considered to be a rehabilitation program. Despite this, psychiatric evidence is that he has improved albeit slowly and any psychiatric abnormality is now considered to be in remission. It is important to note that both during his prison incarceration and his detention in migration centres, his behaviour has not been any cause for concern and on his evidence he has been regularly tested for drug use and at all times has returned negative results. There is nothing in the evidence of IHMS or that has been relayed from the prison system to suggest to the contrary. Finally, as noted earlier in this decision, the Tribunal found Mr Ozer to be a witness of truth and could not detect any evidence of lingering anger or a desire for revenge in relation to either his estranged wife or the victim of his attack Mr Mourat. The Tribunal finds that his risk of reoffending is very low. This of course, weighs in favour of revocation.
Best interest of minor children in Australia
Mr Ozer is the biological father of Taylan Ozer born in May 2007. He has not seen his son since he was arrested on 21 December 2014. He has been prevented by virtue of his incarceration and then detention under the Migration Act from having any contact with his son, either in person, by mail or by internet communication. Between 2007 and mid‑November 2014, the contact was intimate and daily. The Tribunal does not consider that this complete lack of contact resulting from the events of 21 December 2014 negates the father-child bond and therefore weighs this consideration, with respect to this child, highly.
While Aleyna Ozer is not his biological child, Mr Ozer has performed a fathering role since Aleyna was two months old. As with his son Taylan, contact on any basis since the date of the offence to the present time has been zero. No evidence has been produced for the Tribunal relating to the degree of bonding between Aleyna and Mr Ozer, other than the evidence that he has given which clearly is that he regards Aleyna as his daughter. Therefore the same arguments apply as those considered in relation to Taylan and the Tribunal assigns a high weight to this consideration with respect to Aleyna.

It is Mr Ozer’s desire and aim to re-establish contact with both children, to see them on a regular basis and to provide both personally and financially for their care. His aim is to play a very positive parental role should he be allowed to stay in Australia. There are no court orders in force in relation to parental access and care arrangements. In relation to Clause 13.2(4)(e) the Tribunal assumes that Zafer Mourat is fulfilling a parental role in relation to these children but has no knowledge of the level of emotional bonding, nor does it have any knowledge of the views of the children or whether the children have suffered or experienced any physical or emotional trauma arising from Mr Ozer’s conduct. It has never been claimed that he has abused, in any sense, either child. In relation to Aleyna, the Tribunal does not have any evidence of a relationship with her biological father or of any abuse that might have occurred at that level.
Expectations of the Australian community
It is acknowledged that, by virtue of paragraphs 6.2, 6.3 and 13.3(1) of the Direction, the Australian community expects non-citizens to obey the country’s laws while in Australia and that those who commit serious crimes should generally expect to forfeit the privilege of staying in Australia. However, the Tribunal notes that the offences occurred in a domestic setting following marital discord and importantly within a few months of Mr Ozer losing the sight in his left eye in a workplace accident and that Mr Ozer has only transgressed the Australian law on one occasion. As outlined earlier in this decision, there is a low risk, if any, that Mr Ozer will repeat his previous criminal conduct in the future. Although he did not arrive in Australia at a young age or live in the community for most of his life, Mr Ozer has nonetheless lived in the Australian community for a long period of time (12 years) and has made a positive contribution to the Australian community through his work as a mechanic. Taking all these matters into account, the Tribunal is of the opinion that the Australian community would expect that Mr Ozer be given a so called second chance and accordingly finds that this consideration weighs in favour of the revocation of the mandatory cancellation.
Strength, nature and duration of ties
Mr Ozer has resided in Australia since March 2005 – a period of some 12 years. His offences were committed at the age of 34 and in the interim he had an exemplary work/employment history based on his expertise. The respondent submitted that his 12 years in Australia, though a considerable period of time, were mitigated by his 25 years in Turkey. I cannot accept that submission. Nothing in the wording of paragraph 14.2 indicates that time residing in another country is a relevant consideration in considering the strength, nature and duration of an applicant’s ties to Australia. It is, however, a relevant consideration for extent of impediments if returned. There was one episode where he was said to be subject to an IVO (not the IVO issued in November 2014 which Mr Ozer subsequently breached) but this was described by Deniz Ozer as resulting from incorrect identification. This other IVO appears to have arisen from documented theft of his wallet, including credit cards. The Tribunal places no weight on these reports.
The character references provided to the Tribunal all address his skills as a motor vehicle and truck mechanic and this has been his major contribution to the Australian community and the references or character attestations reflect his standing in the community is predominantly amongst permanent residents of Turkish origin.
Mr Ozer has a number of family members in Australia, the most important of which would seem to be his son and his step-daughter. It is clear to the Tribunal that Mr Ozer wishes to have an active role in his children’s lives, personally and financially and that he cares deeply for them. It is his evidence that his aunt, her husband and eight children who live in a nearby suburb have expressed their willingness to help and support him.
It is clear that Mr Ozer has close familial and social ties to Australia and this consideration weighs strongly in favour of the revocation of the mandatory cancellation of his visa.
Extent of impediments if removed
Mr Ozer lived in Turkey for first 25 years of his life and speaks the language fluently. While there may be fewer opportunities for employment, there is no evidence that he would not be able to avail himself of the same living standards available to other citizens of Turkey. Mr Ozer has one remaining living relative living in Turkey, his older sister. There is no evidence before the Tribunal that their relationship is close and his other nearest relatives are all in Australia. Mr Ozer has a physical disability in the form of blindness but would be able to obtain ongoing ophthalmological treatment in Turkey and similarly should he need further psychiatric treatment, although there is little indication that is required at present, this would hopefully be available in Turkey.
There would appear to be no impediments facing Mr Ozer if he was removed from Australia. Thus, this consideration is of no weight.
CONCLUSION
It is clear that Mr Ozer does not pass the character test of s 501(6) and thus the Tribunal must be satisfied that there is another reason why the decision to cancel Mr Ozer’s visa should be revoked. On the evidence before it the Tribunal determines that despite the seriousness of the crimes to which he pleaded guilty, these being of a violent nature and that these offences occurred in the presence of his son, the Tribunal finds that the risk of reoffending is minimal; that the Australian community would be of the view that Mr Ozer should be given another chance and that it is in the best interests of Mr Ozer’s children that he remain in Australia. The strength, nature and duration of Mr Ozer’s ties to Australia additionally weigh in his favour. Accordingly, the Tribunal sets aside the decision under review and substitutes a decision revoking the cancellation of Mr Ozer’s Class BC Subclass 100 Partner (Permanent) visa.

I certify that the preceding 128 (one hundred and –twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member

...........................[sgd].............................................
Associate
Dated: 26 June 2017

Date of hearing: 15 June 2017

Applicant: In person

Advocate for the Respondent: Mr A. Cunynghame

Solicitors for the Respondent: Sparke Helmore
APPENDIX OF EXHIBITS
Applicant
A1       Applicant’s bundle of character references, 7 statements in total
A2       Applicant’s Statement of Facts, Issues and Contentions/Witness Statement
Respondent
R1      G-Documents
R2Northern Hospital Medical Records received by the Tribunal on 4 May 2017 under summons

R3 Victoria Police Records received by the Tribunal on 18 May 2017 under summons
R4 IHMS documents sent to the Tribunal by the Applicant

[2017] AATA 956

26 June 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Date of hearing:	15 June 2017
Applicant:	In person
Advocate for the Respondent:	Mr A. Cunynghame
Solicitors for the Respondent:	Sparke Helmore